Free Riding Hobbles Congress’s Ability to Stop Expansion in Presidential Power

James Madison famously sketched an invisible-hand theory of institutional competition in The Federalist No. 51.

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The Substantial Power of President Trump’s Appointees

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During the Restoration, Charles II traded jibes with his courtiers. None was bolder than the Earl of Rochester who recited this poem in the monarch’s presence:

We have a pretty witty king,
Whose word no man relies on;
He never said a foolish thing,
Nor ever did a wise one.

Charles wittily replied that the last two lines were very true: his words were his own, but his actions were those of his ministers.

Could Donald Trump turn out to be the reverse of Charles II?  Many of his tweets have hardly been wise, but his appointments to the Cabinet have been largely good ones for classical liberalism and in any event almost universally men and women of substance. Just read this lovely essay written by a Democrat about Rex Tillerson, Trump’s nominee for Secretary of State, and his service as a juror. You will have the measure of a man who has the measure of the world.

And these appointments have enormous importance for government because the President, like Charles II,  must govern largely through his cabinet secretaries and agency heads rather than by Twitter.

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Executive Power Should be an Important Issue in the Presidential Campaign

In his second term, President Obama has unilaterally pressed his agenda, now that he has lost the congressional support needed to enact his political priorities through legislation.  These uses or abuses of executive power include the suspension of deportation and granting of work permits for illegal aliens and various decisions to delay the effective date of certain provisions of Obamacare.  As a consequence of the President’s actions, the proper scope of executive authority should figure front and center in the coming presidential campaign.

In conducting this important debate over the nature of our republican order, we must demand that candidates separate out their policy positions from their position on the appropriate scope of executive power. Thus, it is perfectly possible to embrace the policy goals of the President’s executive order on immigration while objecting to its constitutional basis, and vice-versa.  Only by forcing candidates to answer the constitutional question can we have any confidence that they will stick to a consistently constitutional view of executive power.  After a change in partisan control of the Presidency, partisans in both parties have had a habit of waking up on election morning to find that Article II has acquired a new meaning.

In questioning candidates, it is also important to make a distinction between the unity of the executive and the scope of its power—issues that are often confused.

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Yoo to Conservatives: Reverse Course

The latest issue of the National Review has an article by Berkeley law prof John Yoo that invites serious thought and discussion—very serious thought. Here’s the gist:

In the Reagan era, conservatives stood for a “unitary executive” and White House control over administrative agencies (administered through OMB’s OIRA); and for judicial deference to administrative agencies (Chevron deference became near-totemic). Congress was the enemy—the engine of government run amok. Conservatives, John Yoo says, should now “mov[e] beyond” those commitments. What he’s actually urging is a broad-scale reversal: Ditch judicial deference. Re-examine INS v. Chadha, which declared the legislative veto unconstitutional (and which conservatives at the time celebrated as a rousing victory). Re-embrace Lochner—the epitome of “the idea of natural rights that actually informed the Framing.” And, get the institutional landscape right:

Conservatives have correctly shared the Founders’ fear of excessive lawmaking, but they have focused on the wrong source: Congress. They should shift their aim to the administrative agencies, which are the greatest threat to our liberties today.

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A Superfluous Congress

There is not the slightest constitutional pretext for deferring enforcement of unworkable provisions of the Affordable Care Act. By all accounts it is reasonable policy to do so. But the constitutional precedent is profoundly troubling. Congress’ craven capitulation to it is even more so.

No one has noticed in the present case because Congress and the President seem generally to agree on this course. Republicans do not want the law enforced at all, and most Democrats appear to concur in President Obama’s conclusion that more time is needed before certain parts of it should be enforced.

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